Want to see Dellinger, Mahoney, Phillips, Shah...?

On Tuesday, Dec. 3, the Institute for Corporate Counsel presents its annual seminar (5.5 mcle hours) at the California Club in downtown LA (sponsored by the USC Law School and LACBA's Corporate Law Departments Section). Lots of to speakers to see (Pete Wilson, Johan Perez, Mike Feuer, Billie Greer, etc.) and interesting programming to be had (especially re labor and employment law), but for appellate nerds the real show is from 3:15 to 4:15 when "a distinguished panel of former members of the Solicitor General's office will discuss developments and issues before the U.S. Supreme Court."

(If you attend and want to do a write-up, please send it to me for posting.)

Follow-up report:
The panel, moderated by DJ editor David Houston, consisted of Mahoney, Phillips and Shah.
Mahoney discussed Halliburton Co. v. Erica P. John Fund, predicting a ruling that will change the law covering securities class actions. Shah discussed the McCutcheon v. FEC political contributions case, predicting that Roberts will be the swing vote.
Phillips discussed the Greenhouse Gas cases. And Shah discussed the NLRB v. Noel Canning case.

2d DCA pro tem assignments

The following are currently sitting on assignment:

• Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until January 31, 2014.
• Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until January 31, 2014.
• Judge Joanne B. O’Donnell of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Six until December 31, 2013.
• Judge Rita Miller of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until January 31, 2014.Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four beginning January 1, 2014 until February 28, 2014.
• Judge Vincent O’Neill of the Ventura Superior Court will be sitting Pro-Tem in Division Five until December 31, 2013.
• Retired Judge Michael Mink will be sitting Pro-Tem in Division Five beginning December 9, 2013 until January 31, 2014.

Federal SLAPPdown

The ruling California SLAPPaholics have been waiting for has issued this morning: Yes, that would be the order on the en banc petition in Makaeff v. Trump University (order here!). En banc review was denied, thus saving California's anti-SLAPP motions from being thrown out of federal court. A lengthy order denying en banc review was drafted by Judge Wardlaw and Callahan (joined by Fletcher and Gould). It's a great read. But in the other corner, weighing in with Judges Watford (joined by CJ Kozinski, Paez and Bea), is a dissental, also a great read. For anyone looking to understand the policy reasons for and against the anti-SLAPP law, and when en banc review is appropriate, it's all here. Something to ponder as we're all digesting a large meal tomorrow.

And in other exciting anti-SLAPP news, the California Supreme Court granted review in Barry v. State Bar (2013) 218 Cal.App.4th 1435, in which 2/2 had held that no anti-SLAPP fees were allowed in a case where the trial court lacked jurisdiction, and thus lacked jurisdiction to award fees. This rubbed a lot of folks in the anti-SLAPP sphere the wrong way, so this grant of review is welcome news.

Judicial elections: Choosing nobody

The current issue of California Litigation (vol. 26:3) features another Justice Beds' masterpiece: California Judicial Elections -- Not What the Greeks Had in Mind, Maybe, But it Works. This piece should be read not just by every lawyer in the state, but by every voter.

"In my last election, 501,784 Californians, given their choice between me and nobody, chose nobody."

Also of potential interest to appellate practitioners in 26:3 is Beg, Borrow, Steal: Plagiarism vs. Copying in Legal Writing. (What?! You're a litigator but are not getting California Litigation, the journal of the Litigation Section of the State Bar of California? Then it's time to bite the bullet and enroll for membership with the Litigation Section.)

DJ profiles 4/1's Justice Irion

Today's DJ profiles 4/1's Justice Irion, starting off with the tragedy of her father's murder.
Practitioner quotes include these: "her questions are well focused, very clear and concise"; "she is one of the more thorough questioners at the Court of Appeal. She goes beyond the briefing to get to the bottom of the issue"; "polite and professional to everyone in the courtroom"; "bright, dedicated and absolutely brilliant"

This amusing pic has nothing whatsoever to do with Justice Irion.

"She digs to the root of the problem."

Also, today's MetNews has an article titled C.A. Justice Suzukawa to Retire at End of February, quoting him as saying that "It seemed to be a good time to go. I'd like to try some different things. There are so many places on my bucket list [and retirement will me to see] a bunch of different places ... while I'm still ambulatory." He noted that he would "probably not" do private judging, practice law, or sit by assignment.

ABA CAL, CASA, AJEI Conference

So the really big Southern California appellate news from last week was the ABA's 10th Annual Council of Appellate Lawyers, Council of Appellate Staff Attorneys, and Appellate Judges Educational Conference, held in San Diego. This was only the second time the conference was held "out west," and last time it was in San Francisco (in 2005). Attendees from around the country were in abundance, as were California appellate justices and practitioners. Our Chief Justice gave a nice "welcome to California and San Diego" speech; Justice Liu was on a panel about dissenting opinions (summary here, courtesy of At the Lectern); and most of the appellate districts were represented, e.g.: Justice Humes from the 1st; Justices Gilbert (on the opinion writing panel) and Chaney from the 2d; PJ Raye from the 3d; Justice Richli from 4/2; Justices Moore (on the dissenting opinions panel) and Aronson from 4/3; Justice Detjen from 5; PJ Rushing from 6; and from the "hosting" 4/1, PJ McConnell and Justices McDonald, Huffman, Aaron, and Irion. Ninth Circuit attendees included Judges Randy Smith (a conference organizer who also spoke on some panels), Callahan, Graber, McKeown (on the dissenting opinions panel). (Apologies to anyone overlooked in the crowd!) Especially noteworthy presentations were made by Justice Sandra Day O'Connor, Solicitor General Verrilli, Professor Michael Klarman, Professor Eugene Volokh, David Frederick, and Deans Tacha and Chemerinsky.

Yes, it was definitely the place to be last week. If you were there and want to supply a write-up for this blog, please send it to me. And if you weren't there, well, you really missed out. Be sure to save the dates of Nov. 13-16 for next year's program in Dallas.

DJ profiles 4/1's Justice O'Rourke

Today's DJ profiles 4/1's Justice Terry O'Rourke, who is quoted as noting that "sophisticated business litigation" is being siphoned off away from the courts to ADR, which "skim[s] all the good stuff," leaving the court with criminal appeals and dependency cases. The article calls Justice O'Rourke "an early riser and avid reader ... fabled for his fierce intellect, passion and candor." Known for his "straight talk" and independence, practitioners are quoted as calling him a "first-class judge." The DJ's 2004 profile noted that he was an avid mountain climber at one point; considered himself "unpopular and an outsider"; is "off the chart" intelligent; and quoted him as saying "Intellectual life in American has declined." Both that profile and today's use the phrase "black and white."

His advice to lawyers:

"Nothing is more persuasive than a well-researched, honest and well-articulated brief. Oral argument can in no way replicate that."



"Too smart for his own good"?

Also in today's DJ is Two More Justices on LA Appellate Court to Retire, discussing the impending retirements of Justices Mallano and Suzukawa set for the end of February. For those keeping score at home, this raises the total number of vacancies on the 2d District to six. The articles names the following judges as possible nominees to the open seats: Rita Miller, Richard Rico, John Shepard Wiley Jr., Sanjay Kumar, Edward Ferns, John Segal and Joanne O'Donnell.

Solicitor General's Style Guide now available

And we won't be dressing like this to court, either!

Hot off the presses for your appellate library comes The Solicitor General's Style Guide. As described in this week's National Law Journal article, Now Everybody Can Write Like the Solicitor General, you'll learn the following: "caselaw" should be two words, not one; "attorney's fees" not "attorneys' fees"; never use the section symbol; don't italicize the "v." in case names. Uh, us Californians will be sticking with the good ol' YellowBook, thank you very much!

2/1's PJ to retire in 2014

Today's MetNews reports that 2/1's PJ Robert Mallano will retire next year (Feb. 28), and notes that Justices Chaney and Johnson "say they will not apply" for the PJ position. Justice Johnson is quoted as calling PJ Mallano "a brilliant jurist, kind and compassionate, a loyal friend and a great teacher."



Has no plans to engage in private judging
or do any other type of legal work:
"I want to learn to play Silent Night on the mandolin."
Sounds like great entertainment for the IALA Supreme Court dinner!

DJ packed with appellate goodness this week

Don't miss John Taylor's article in the DJ this week (The 'Bring Your Own Transcript' Approach to Civil Appeals) which very helpfully explains recent and coming changes to your California appellate practice. New Rule 8.144 takes effect January 1, 2014, so be ready for new and improved RT rules (and, of course, new fees, naturally).

Also, be sure to read Tips from Justice Liu on Brief Writing ("by" Dan Smith and Ben Feuer) relating nine briefing tips Justice Goodwin Liu offered recently to the BASF:
1. Let perfection be the ally of the good.
2. Keep sight of the forest as well as the trees.
3. The structure of your organization must be clear.
4. Balance authority with logic and reasoning.
5. Show expertise to enhance credibility.
6. Show that you know your audience.
7. State the rule the court should adopt.
8. Clarify the limits of your position.
9. Give the court options.

Nine Hot Tips

And in Monday's issue, there was an article about the 9th Circuit's En Banc process (In 9th Circuit, En Banc Decisions Leave Judges' names out; despite dissent, decisions remain veiled on whether full court rehears a case). As the article explains, although some circuits release en banc votes, in the Ninth Circuit, "secrecy rules ... when it comes to one of the court's most crucial tasks: deciding whether to rehear an important case en banc." Judge Reinhardt has been trying to make the court's votes transparent.

Dec. 4 is IALA's Supreme Court Night

Every December, since before the memory of man runneth not, the Italian American Lawyers Association has hosted the California Supreme Court at the Casa Italiana in downtown LA (1051 N. Broadway). This year's event is December 4, so now is the time to buy your table or ticket. How can you resist coming to see the Supremes sip Campari, slurp spaghetti, and spoon up spumoni?

Details: Wed. 12/4/13 Cocktails @ 5:30, Dinner & Program @ 6:30

Music by Gary Green, Esq. and His Big Band of Barristers

Photo from IALA 2010: The Chief gets Rosetta Stone's Italian language program,

while surrounded by the appellate bar's luminaries.

Kozinski in court ... as objector

As has been widely reported (e.g., here, here), including two stories in the DJ (9th Circuit Chief Judge's Role as Class Action Objector May be Unprecedented and 9th Circuit Chief Judge has Unusual Courtroom Role: Objector), the Chief Judge has had some car troubles with his Nissan LEAF electric car, and is representing himself in Klee v. Nissan North America Inc. before C.D. Cal. Judge O'Connell. Professor Arthur Hellman is quoted: "The federal judiciary is hierarchical. It is a hierarchy and Chief Judge Kozinksi plays a role in the hierarchy [of] which Judge O'Connell is a part. It puts the district judge in a very difficult position. Here the chief judge of the circuit is telling her in very strong terms [that] it would be a gross miscarriage of justice to approve this settlement."

Not the CJ's LEAF, b/c his, is named Pearl, isn't blue.

Yeah, ok, he's the chief of the circuit. But he can be a litigant too. (Quote from Professor Lubet: "Judges are allowed, just like anyone else, to assert consumer claims, including objections to class action settlements.") An Article III judge is going to rule the same way regardless of a "celebrity" litigant, right? As the Supreme Court made clear recently in Vance, for example, under Title VII, a supervisor must be able to take tangible employment action against the victim. The Chief does not control Judge O'Connell's "job" in that way.

Hey bar groups, here's a proposed program topic: The CJ & PJ as Litigant, starring CJ Kozinski and PJ Gilbert!